Colorado Court of Appeals holds that an oil and gas lessee has standing to bring a claim for an easement by prescription, but finds that the use of an access road was permissive and, thus, denies the operator's prescriptive easement. Maralex Resources, Inc. v. Chamberlain, Case No. 12CA2575, 2013 CO 182, 2014 Colo. App. LEXIS 3 (Jan. 2, 2014)

Since 1996, Maralex has been the lessee under certain oil and gas leases issued by the United States, and it operates many wells on land owned by the federal government. Historically, Maralex and its predecessors have accessed their wells by using two roads located on the defendant landowner's property. The Court of Appeals opined that rights held by an oil and gas lessee are sufficient to confer standing upon that party to pursue claims for a prescriptive easement. In doing so the Court of Appeals rejected the trial court's reliance on inapplicable landlord-tenant rules from English common law in the context of an oil and gas lease. The Court of Appeals noted that despite the use of the terms "lessor" and "lessee" in an oil and gas lease, that instrument is a conveyance of real property rights. It concluded that "an oil and gas lessee has a legally protected interest in the mineral estate covered by the leases," and thus Maralex had standing to maintain a prescriptive easement claim.

Nevertheless, the Court of Appeals upheld the denial of the prescriptive easement claim. No party disputed that Maralex or its predecessors had continually, openly and notoriously used the roads for over 18 years. So, the sole issue was whether Maralex could establish that its use was "hostile" as opposed to "permissive." If the use was permissive, Maralex's claim of easement by prescription would fail.

The Court of Appeals noted that there had been evidence at trial that the use of the road may have initially been permissive. It also noted that there was evidence regarding the subsequent installation of two locked gates across the road. The oil and gas well operator, at various times, had a key to one of the gates but not the other. The gates were sometimes locked and sometimes left open. The trial court ultimately found that the use of the roads was permissive based upon the evidence presented at trial.

The Court of Appeals found that the trial court's decision was based upon an analysis of the facts of the case and appeared to be supported by the record. Therefore, the Court of Appeals would not disturb the finding regarding the permissive nature of the use. The Court of Appeals noted, however, that the installation of a gate across a road, in and of itself creates only a presumption of permissive use of the road but does not create an irrefutable conclusion that the use of the road is permissive. It also noted that the fact that keys are provided to a party to open a locked gate is, in itself, insufficient to create conclusive presumption that the person's use of the road is permissive. That act could, the Court of Appeals points out, reflect the landowner's acknowledgement that the road user already has a legal right to use the road regardless of the landowner's permission.

The Court of Appeals also noted, but did not address, an argument by the oil and gas operator that the use may have initially been permissive but then developed into hostile use. The Court of Appeals refused to address this issue because it found that the oil and gas operator had raised the issue for the first time on appeal. In the end, the denial of the prescriptive easement claim was based upon a factual finding regarding the nature of the use, and not the application of any bright-line legal standard.